In re Spencer

— This is an appeal from a probate order denying a motion for a new trial in a contested will case. Counsel for respondents argue very elaborately that the said order is not appealable; but although the provisions of the code about appeals from probate orders are not as clear as they might be, it must be held as settled practice since the decision in the Estate of Bauquier, 88 Cal. 302 , that when there has been a regular contest over the probate of a will, an appeal lies from an order denying a motion for a new trial.

Mary C. Spencer died in January, 1888. In September, 1884, she made a will, duly executed, in which she gave all her property, except five dollars, to her daughter, Ida McDannel, and May McDannel, the infant daughter of the said Ida, with a provision also for other daughters-of said Ida, if any such should thereafter be born. At-the date of the will said Ida McDannel was the only living child of said testatrix.

There had, however, been another child of the testatrix, a son named Homer T. Spencer, who had died before the date of the will. He had married a lady whose maiden name was Ella Murphy; and there had been born to said Homer and Ella a son named Rufus Homer…